News and notes from Tsarnaev’s June 18 status conference

I don’t think I’ve ever seen a criminal case in federal court in which the lawyers agreed on discovery. The Dzhokhar Tsarnaev prosecution is no exception.

The attorneys appeared before U.S District Court Judge George A. O’Toole Jr. today (June 18) for a status conference. One of the big topics of debate was expert witnesses. The prosecution claims the defense should be required to disclose – sooner rather than later – the names of any experts it plans to call during the penalty phase of the case. Assistant U.S. Attorney William Weinreb said the government plans to present evidence during the penalty phase that Tsarnaev committed his crimes to “aid and comfort America’s enemies.” He argued that if Tsarnaev is going to put on an affirmative defense to combat his theory, the prosecution is entitled to know the names of any experts who may be called.

Tsarnaev’s lawyers countered to the judge that the burden of proof is on the government. There is no lawful reason, they argued, why Tsarnaev should be required to produce evidence that would only be relevant to an issue related to the death penalty phase. Defense attorney Judy Clarke told O’Toole that the Fifth Amendment shields any defendant, including Tsarnaev, from having to make disclosures to the government regarding experts. She said she had never heard of a lawyer being ordered to do so in the manner being suggested by the prosecution.

The judge took the issue under advisement.

O’Toole also ruled that a hearing on Tsarnaev’s motion to suppress statements was not needed. The defense claims that prosecutors violated Tsarnaev’s rights by questioning him without affording him his Miranda Rights and ignoring his requests for a lawyer. The government is expected to argue that its conduct was permissible under a Supreme Court recognized public safety exception.

But given that the prosecution has stated in filings that it does not intend to use any of Tsarnaev’s statements in its case-in-chief, O’Toole said there was no reason to take the matter up now. Prosecutors have said they may try to introduce the statements for impeachment purposes or during the sentencing phase of the case. The judge said he will address the issue mid-trial only if/when it becomes necessary. The ruling means Tsarnaev likely won’t be coming to court in August for his next court date. He did not appear today. In fact, since entering his not guilty plea last July, he has waived his right to be present for all of his court dates.

While O’Toole is keeping things on track for a November trial date, I fully expect the defense to file a motion to continue later in the summer on grounds that they simply need more time to prepare for what promises to be an unprecedented trial.